Privacy Issues in the Workplace

in conjunction with an approved investigation”; (3) the policy specifically warned employees that their e-mail communications would be “automatically saved” and are subject to review by the employer and by disclosure to third parties, and (4) the employee admitted he was aware of the employer’s policy. Thus, the court found that the employee had no reasonable expectation of privacy in the e-mails and that the marital privilege did not apply. 480

H. V IDEO S URVEILLANCE OF E MPLOYEES Situations may arise, such as suspected theft or other misconduct, where an employer finds it wants to conduct hidden video surveillance of its employees. However, employers have to balance their desire to conduct hidden surveillance against the employees’ right to privacy.

NOTE: Labor Code Section 435 prohibits an employer from making any audio or video recording of an employee in a restroom, locker room, or other room designated for changing clothes, unless authorized by a court order.

Hernandez v. Hillsides, Inc. 481 In Hernandez v. Hillsides, Inc. the California Supreme Court addressed an employee’s right to privacy in the workplace following an employer’s use of a hidden video surveillance camera in an enclosed office as part of an investigation into possible employee misconduct. In Hernandez the employer operated a residential facility for abused children. The executive director installed a hidden video camera into an enclosed office shared by two employees after learning that someone was accessing pornography sites from one of the computers after hours. The camera was only operational a few nights after regular working hours and neither of the employees was captured on film. The Court concluded that Hillsides was not liable for an invasion of privacy. This case was somewhat unique because Hillsides had an acute interest in preventing individuals from viewing pornography in light of the organization’s goal to provide a wholesome environment for the abused children in its care. The Court pointed out that employers should generally not use such video surveillance in the workplace without providing “adequate notice to persons within camera ranges that their actions may be viewed and taped.” While the Court’s decision does not necessarily mean that employers must provide details of video surveillance methods used in the workplace, an employee should be placed on express notice that such methods may be used. Unlike other notice provisions that are often contained in an Employee Handbook, there is a strong inference from this decision that employers should provide a separate notice and acknowledgment form to employees that video surveillance may be used in the workplace. Employers should require that employees review and sign the

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